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New Changes to Traumatic Brain Injury Residential Housing Act Lead to Mixed Results

On April 27, 2016, Governor Bill Haslam signed into law changes to the Traumatic Brain Injury Residential Housing Act of 2012 (“TBI-RHA”). We were instrumental in obtaining enactment of TBI-RHA and safeguarding its new licensing scheme for victims of traumatic brain injury throughout the rulemaking process.

The new changes, Public Chapter 109, amend the defined term “Traumatic brain injury residential home” under TBI-RHA as follows: "'Traumatic brain injury residential home' means a facility owned and operated by a community-based traumatic brain injury (TBI) adult care home provider in which residential care, including assistance with activities of daily living, is provided in a homelike environment to disabled adults suffering from the effects of a traumatic brain injury as defined in § 68-55-101.” Previous law defined such homes as “a single family residence owned and operated by a community-based traumatic brain injury (TBI) adult care home provider in which residential care, including assistance with activities of daily living, is provided in a homelike environment to no more than eight (8) disabled adults suffering from the effects of a traumatic brain injury (TBI) as defined in § 68-55-101.”

The new law removes “single family residence” and substitutes “facility” in its place. It also removed the eight person limit for disabled adults to live in such a facility. There is no such limit under the new law. The term “facility” is defined under previous law as “any institution, place or building providing health care services that is required to be licensed under this chapter.” Tenn. Code Ann. § 68-11-201(15). For all practical purposes, there is no longer any requirement for a TBI-RHA home to be a single family residence; rather, it can be an institution, a place, or building providing health care services. The amendment moves these types of facilities from their original community-based care model into a more institution model of care, as reflected in Tenn. Code Ann. § 68-11-274 of the old law. The amendments also delay implementation of the new licensure until January 1, 2017. “It is the intent of the general assembly that any traumatic brain injury residential home currently operating has until January 1, 2017, to be licensed by the board for licensing healthcare facilities. Any such traumatic brain injury residential home may continue operations prior to being licensed.” See Section 2 of Public Chapter 109.

It remains to be seen how these changes will affect TBI-RHA providers across the State of Tennessee. It is certainly positive that four years after enactment of the original law, the General Assembly saw fit to remove the eight person limit in TBI-RHA. This somewhat arbitrary limitation was largely based on the five person limit included with TBI-RHA’s predecessor, the Critical Adult Care Home Act of 2009. Moreover, delayed implementation of pending regulations may also result in a mixed bag. Providers worked tirelessly to ensure that the proposed regulations followed the spirit of the original legislation. Those efforts now appear to be put on hold. Similarly, one of the key components of the new licensure was to ensure that TBI-RHA homes were integrated into their surrounding communities, instead of being reduced to mini-nursing homes or “facilities”, as defined under existing health care institutions law.

Removing the reference to a “single family residence” and replacing it with the institutional “facility” defined term appears to move this licensing scheme from community-based care back towards a more conventional model. Such attempts were also made back in 2012. They were partially successful, such as the amendment of the original act to include an escape valve for providing such care to residents of TBI-RHA homes. Tenn. Code Ann. § 68-11-274 provided, “As an alternative to the licensing conditions of off-sit day services established [under other provisions in TBI-RHA], a traumatic brain injury residential home serving only private pay or private insurance clients may provide day services for its residents on site as part of its comprehensive services.”

In 2012, Tennessee led the nation in establishing a new license category for residential homes that exclusively served residents suffering from the effects of traumatic brain injuries. While the legislature should be lauded for advancing the goals of TBI-RHA by removing the somewhat arbitrary eight person limit, at the same time it should not have substituted the nursing home-lite term “facility” in place of “single family residence.”

In doing so, Tennessee took one step forward and two steps back as it regards this important and vulnerable patient population.